No sanction is required to prosecute a public servant who has ceased to hold office when the prosecution is for offences under the Prevention of Corruption Act.

JUDGMENT

Rajeev Kumar Shrivastava, J. - This order shall govern the disposal of Misc. Criminal Case No. 1257/2020 (Mahabir Prasad Jain and Others vs. State of MP) and Misc. Criminal Case No. 2844/2020 (H.D. Joshi and Another vs. State of MP), as both the petitions are filed for getting similar relief.

2. Misc. Cri. Case No. 1257/2020 has been filed against the order dated 14.11.2019 and Misc. Cri. Case No. 2844/2020 has been filed against the order dated 13.3.2019, both passed by Special Judge under Prevention of Corruption Act, Gwalior in Case No. 03/2020 SST. By both impugned orders the applications filed by the petitioners for their discharge for want of sanction have been rejected.

3. Facts of the case, in short, are that a criminal case has been registered against the officers of Harsi High Level Sindh Project Phase-II of Government of M.P. and also against the officers of LNU/Federation of State of MP on the allegation of financial irregularity during the period between 2006 to 2010 and Crime No. 29/2009 was registered. In FIR the allegations were made with regard to corruption in purchase, supply and erection of material/apparatus by officers of aforesaid Project for getting monetary benefit. After due investigation, charge-sheet was filed for the offences punishable under Sections 409, 420, 467, 468, 471, 120B of IPC read with Section 13(1)(D), 13(2) of Prevention of Corruption Act, 1988 (for brevity, the 'PC Act').

4. The petitioners filed applications alleging that the petitioners are retired government servants, who retired after attaining age of superannuation from Water Resources Department. Charge sheet was filed after the date of superannuation of the petitioners. The petitioner were retired in the year 2008 and charge sheet has been filed without prior sanction under Section 197 of CrPC and Section 19 of PC Act.

5. Learned counsel for the petitioners has contended that the impugned orders are not in accordance with law and are against the settled principles of law, hence liable to be set aside. The petitioners are public servants. The Trial Judge has failed to consider the fact of prior sanction under Section 197 of CrPC and Section 19 of PC Act. In support of his version, learned counsel for the petitioners has placed reliance on the judgments in the cases of N.K.Ganguly vs. CBI [(2016) 2 SCC 143] and Baijnath Gupta vs. State of MP [AIR 1966 SC 220] .

6. Learned counsel for the petitioners has contended that as no sanction was obtained by the respondent at the time of filing of charge sheet against the petitioners, the Court could not take cognizance in the matter, even charges could not be framed in absence of sanction. The petitioners were discharging their official duties, therefore, they are having shield of Section 197 of CrPC. The trial Court has erred in rejecting the application on the basis of amendment in the PC Act having effect of procedural sound and not substantial and applicability of law retrospectively has been considered wrongly. Hence, prayed to set aside the impugned orders.

7. Learned Special Public Prosecutor has opposed the submissions advanced by the learned counsel for the petitioners and urged that procurement of prosecution sanction is only essential where, the charge-sheet is filed against a retired government servant for the offences under the Indian Penal Code, committed by the public servant while discharging his official duty. He contended that no sanction is required for prosecuting a public servant or retired public servant for the offences under the Prevention of Corruption Act if he has superannuated and ceased to be a public servant before submission of charge-sheet. On these grounds, he implored the Court to dismiss the petition.

8. We have given our thoughtful consideration to the arguments advanced and have gone through the material available on record.

9. Section 197 of the Code of Criminal Procedure reads as follows :

'197. Prosecution of Judges and public servants. (1)